ORAL ARGUMENTS AND COALITION FORMATION ON THE U.S. SUPREME COURT: A DELIBERATE DIALOGUE

Reviewed by Chad Westerland, School of Government and Public Policy, University of Arizona. Email: cwesterl [at] email.arizona.edu

pp.305-308

In Oral Arguments and Coalition Formation on the U.S. Supreme Court, Ryan C. Black, Timothy R. Johnson, and Justin Wedeking argue that forward thinking justices use oral arguments as an agenda setting tool and as a way to gather information about preferences and arguments that their colleagues might make during the opinion writing process. As a result, the foundation for the opinions written by the Court are laid during oral arguments. For Black, Johnson, and Wedeking, oral arguments are interactions between the justices, not just between the justices and the lawyers. This is also the first and only time justices have an opportunity to interact face-to-face with one another. The link between oral arguments and coalition formation has been previously overlooked, and this book is a first attempt to fill this gap in the literature.

In the first of three empirical chapters, the authors examine patterns of justices interrupting each other during oral arguments. A broad range of cross-disciplinary social science research is used to argue that interruptions allow justices to shape which topics are being discussed. Interruptions do not just provide specific information but instead act as almost an agenda setting mechanism. Justices can steer the conversation in a particular direction or prevent a continuation of a line of discussion by interrupting. Using data collected from the OYEZ project between 1998 and 2007, Black, Johnson, and Wedeking find that roughly six percent of all utterances are interruptions, with an average of about eight per case. After an overview of aggregate and individual patterns in the data, the authors test an empirical model of interruptions. They find that ideologically distant justices are more likely to interrupt one another and that previous interruptions are likely to lead to additional interruptions. Further, complex cases have fewer interruptions, and justices who tend to write more opinions in a particular issue area are less likely to be interrupted.

Chapter 3 focuses on learning behavior during oral arguments. In order to do so, the authors first seek to show a link between oral arguments and opinion coalition formation. This is a clearly important but difficult to answer question. Justices may use oral arguments to gather informational signals from those both ideologically closest and most distant colleagues in order to achieve outcomes as close as possible to their ideal points. Ideologically proximate justices can use oral arguments to coordinate with one another, while information from ideologically distant justices allows a justice to prepare counterarguments to [*306] be used as opinions are written. Oral arguments can also help reveal the preferences of the median justice, which is critical information for a forward thinking justice.
The extensive papers from Justice Blackmun and Justice Powell are used to test these hypotheses. Using a measure of learning based on the number of times Blackmun (or Powell) notes a comment by a specific justice in a given case, the authors estimate models for the two justices separately. The difference in results between Blackmun and Powell is quite striking. Justice Blackmun was more likely to take notes about comments from ideologically distant justices and from justices at or near the median of the Court. However, Justice Powell primarily seemed to take notes regarding ideologically close justices and not the median. For the authors, the two models both demonstrate learning, as the results are evidence of different kinds of information gathering strategies. Black, Johnson and Wedeking then use the number of speaker references in two separate models of responses to initial opinion drafts written by Blackmun and Powell. For both justices, an increasing number of references to a colleague significantly reduced the likelihood of that justice joining a Blackmun or Powell majority draft. This suggests that both justices are using oral arguments to focus on strategies for coalition building.

In the last empirical chapter, chapter 4, the authors take advantage of Justice Blackmun’s occasional practice of predicting colleagues’ votes. If justices use oral arguments as the first key step in building a road map to an opinion coalition, then we should see justices anticipating how other justices will act and react after oral arguments. Both the decision to predict a vote, which Justice Blackmun attempted for at least one colleague in about 20% of the cases, and the accuracy of the prediction should be determined by the quality of the information available to Blackmun. The expectations for whether or not Blackmun predicts a vote and whether or not he predicts a vote accurately are identical; variables that make a prediction more likely should also all make the prediction more accurate. Justices close to the median and ideologically distant from Blackmun should be more likely to have a (successfully) predicted vote. This should also hold when Blackmun has taken more notes about a colleague’s arguments during oral arguments or if he took more notes generally in a case. Length of joint service, issue expertise, and legal complexity are all also included in the model. The two stages (attempt to predict, accuracy of prediction) are estimated jointly with a selection bias model. The analysis in this chapter is used to demonstrate that the information gathered by Blackmun during oral arguments helped him to anticipate his colleagues’ voting behavior. Ideological distance is a strong predictor of both the prediction attempt and the accuracy of Blackmun’s guess, which again is evidence of strategic behavior for the authors. Colleague-specific references also make Blackmun more likely to predict a vote and more accurate in his prediction. This holds as well when Blackmun serves on the Court with a justice over a long period of time and when Blackmun is an issue expert. The finding that Blackmun attempted more predictions and was more successful with those predictions in [*307] legally complex cases is contrary to initial expectations, but the authors suggest that the uncertainty inherent to legally complex cases are precisely the cases in which justices need the information from oral arguments if they are to successfully build the road map showing the way to a final coalition.

Black, Johnson, and Wedeking end with a short conclusion that both recaps their findings that oral arguments are properly seen as strategic conversations between the justices and offers suggestions for future research. One future research direction in particular strikes me as especially relevant and worthy of additional consideration. The authors note in the conclusion that we observe large variance in how justices behave in oral arguments. Justice Thomas, for example, speaks so infrequently that when he does it is national news. They suggest that Thomas’s silence is possibly because his colleagues already know his views, so he has no incentive to speak. If that is true, then we need an alternative explanation for why Justice Scalia is so active during oral arguments. To be sure, Thomas’s reticence makes him an outlier, but it is not clear how preference predictability distinguishes Thomas from Scalia in this regard. This is not to deny the possibility of strategic interruptions or justices strategically using oral arguments to predict coalition behavior, but given the authors’ repeated use of the strategic action language, I am left wondering about the theoretical implications of having a justice such as Thomas essentially opting out of something so important.

The question of the generalizability of this work extends beyond just concerns about a single silent justice. Much to the authors’ credit, the role of oral arguments is consistently presented in very general terms, but since two of the three empirical chapters are limited to one or two justices, I am more hesitant than the authors about their conclusions. In almost every way, criticizing the authors for having limited data is unfair. A huge amount of original data collection and coding was undertaken for this project, and it was done in a careful and thoughtful manner. However, even with the small sample of justices, the findings still suggest that justices vary in how oral arguments are used. Consider again the analysis in Chapter 3 for Powell and Blackmun. I am willing to believe that Blackmun and Powell use oral arguments to gather different types of information during oral arguments even if they share the motivation of coalition prediction, yet the presentation of the theory or hypotheses do little to suggest why they need information from different sources. Arguing that justices will learn from ideologically distant, ideologically close, and justices close to the median seems to be another way of saying justices will learn from everybody else on the Court. It does not explain why we would expect Powell and Blackmun to be paying attention to different justices during oral arguments. The authors note that Powell was likely the median justice during much of his time on the Court (p.82), but the implications of this for how a median justice might need a different informational strategy from an ideologically extreme justice are not fully considered. A complication for this explanation is that Blackmun was also very close to the median while on the Court. Just as with the Scalia-Thomas difference in willingness to speak at oral arguments, the results from Chapter 3 [*308] show two distinct processes at work for two ideologically similar justices. Given this individual variation, the question of whether or not the findings in Chapter 4 regarding Blackmun’s willingness and ability to predict votes are representative of the Court as a whole is unavoidable.

Despite these questions, Black, Johnson, and Wedeking should be commended for their high quality work. The book certainly belongs in any graduate level class on U.S. Supreme Court decision making, yet it is accessible enough that it would not be out of place on an advanced undergraduate syllabus. Beyond the substantive contributions, the book also serves as a model for how to present empirical analyses. The models are clearly explained with a minimum of fuss, and the figures that accompany each analysis thoroughly and effectively demonstrate the meaning of the results. Simply put, Black, Johnson, and Wedeking have produced the most convincing work to date on the importance of oral arguments.